One of the main challenges that HR staff face regarding FMLA is the law’s allowance of intermittent leave for serious health conditions as well as child care (although the latter allowance is at the discretion of the company or organization). The challenge here is that not all requests for leave are under the same circumstances, and sometimes the question of whom to approve or reject for intermittent leave is not so clear cut. While some employees might have genuine reasons to ask for intermittent leave, HR staff need to be aware that there are some employees who do not act in good faith and might be asking for leave not covered by the FMLA. Below are some ways HR professionals can determine whether or not to grant intermittent leave to employees.
Ways to handle intermittent leave
HR staff should remember that eligibility for intermittent leave is not automatic and this is a way to protect companies from employees who may try to take advantage of the system to take more time off from work. Employees need to have clear evidence that they are eligible for leave, such as giving their company specific information as to how much time off they are going to miss, when either going to a doctor’s appointment or when they are dealing with a specific medical condition.
When an employee is eligible for intermittent leave under FMLA, companies and organizations can minimize disruption in a few ways. They can classify time off from work due to sickness retroactively (even when the employee was sick while on vacation). Employers can also oblige employees to use their paid time off and intermittent leave concurrently, or count employees’ short-term disability or worker’s compensation as part of their intermittent leave. Although in the instance of disability and worker’s compensation, employers cannot ask employees to use the paid time off they’ve accrued. Employers can transfer the employee temporarily into a similar position they hold at the company if the employee is unable to complete tasks associated with their current role due to scheduling or health related matters. In this case, the benefits and pay in this position must be the same as their actual job, and it must not adversely affect the employee.
Inform employees on company rights with regard to FMLA
FMLA is a law that favors employees, but HR staff should communicate that employers also have some rights under this legislation as well. If intermittent medical leave is to be taken, employees need to go to HR and explain why they are taking leave and under what circumstances. Employees also are responsible for making sure that such leave has the approval of the employee’s health care provider. They need to be aware that employers can lay off or terminate an employee on leave if it is determined that the employee was taking leave for reasons other than those previously given. Companies also have responsibilities. If a company lays off an employee during their leave, they have a responsibility to show that they were already planning for workforce reductions and layoffs, and that the employee losing their job was not because of leave taken. Companies can also fire employees on leave if they were shown to violate company policies, displayed repeated misconduct while on the job, or if their job performance was found to be incompetent while on leave. Indeed, these reasons for termination have been upheld by numerous courts of law.
Intermittent leave is a legal right of employees under FMLA, so HR staff and employers need to be aware of how to best handle matters when employees say they need to take time off. However, knowing what the rules are means that HR can identify what is eligible leave and what is not, and do have a number of options in order to ensure that intermittent leave does not overly disrupt company operations.
